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Employees are owed “premium pay” when they miss a meal break or a rest break. Labor Code section 226.7 provides that if an employer fails to provide a meal, rest or recovery period, the employer must pay the employee one additional hour of pay at the employee’s regular rate of compensation, for each work day that the meal or rest break is not provided.

There is one violation for a missed meal break and one violation for a missed rest break. In other words, if you miss both a meal break and a rest break in one day the employee is entitled to two hours of premium pay. However, the maximum amount that can be owed for each day is two hours of premium pay because the statute requires payment of the premium for each workday, not each occurrence during a work day. So for example, if on a single workday one meal break and two rest breaks were not provided, the employer would still only owe two hours of premium pay.

In United Parcel Service v. Superior Court of Los Angeles County, a California Court of Appeal ruled that there are two separate remedies because the premium wage requirement is contained in two separate sections of the Wage Orders.

Further, the one hour of pay is a wage, not a penalty. Wages are benefits that an employee is entitled to as part of compensation, including money, vacation pay and room and board. Employees who must forego the meal and rest breaks give you free work and lose a benefit to which they are entitled. In other words, the employees lost wages they were owed. The hour of additional pay is not only an incentive for employers to comply with the law but, foremost, a premium wage that compensates employees — not a penalty.

The distinction between a penalty and a wage is important as there is a three-year statute of limitations for the one additional hour of pay employers must pay employees when a meal or rest break is not provided as opposed to only one year for a penalty.